2012 PLP 449 (YLR)

AHMED ALI M. SHAIKH, J.

Through this petition the petitioner has prayed as under:-- (a) To issue writ declaring that the act of the official respondents towards accepting the Gift-Deed without personally verification of the executant who was on death bed and document if any, presented or processed liable to be confiscated being manipulated, false, baseless, illegal, as the father of petitioners and private respondents was under constant drowsy and was died on 9-3-2011. (b) To restrain the respondents from completion of their work and submit the original document before this honourable Court for the purpose of confiscation and further restrain the Mukhtiarkar City from mutating any document and from issuing Extract, Sale Certificate and the Registrar from receiving any Sale-Deed, Gift-Deed from the private respondents and restrain them from creating third party interest, in any manner, whatsoever. From the pleadings, it appears that the petitioners and private respondents are brothers inter se and there is a dispute between them in respect of immovable property i.e. Flour Mill constructed over Plot No.58/2 Ward 'G' as well as Plot Nos.58/17, 18 and 19 Ward 'G' left by their father Late Ahmed Ali Memon. Learned counsel for the petitioners contended that before his death, petitioner's father continuously and constantly remained ill and due to such illness he was not in a position to sell, transfer or distribute any of his properties to his legal heirs but by taking advantage of illness of their father, private respondents got prepared a false and forged Gift-Deed with sole object to transfer the property bearing C.S. Nos. 58/18, 58/19 and 58/2 in the name of respondent No.6. He further contended that the above Gift-Deed is false and a managed document and on the basis of that document, private respondents intend to get transferred the record of property rights in favour of respondent No.6 with sole object to usurp the share of the petitioners. He lastly contended that the private respondents have presented the same forged Gift-Deed before the respondent No.2 for registration. Conversely Mr. Riazat Ali Sahar, learned counsel for private respondents questioned the very maintainability of this petition and contended that genuiness or otherwise of the gift-deed cannot be questioned in these proceedings. He further contended that neither gift-deed is a manipulated or managed document nor the respondents have got prepared the same. In fact the same is a genuine document and has already been presented before Sub-Registrar, who registered the same on 7-4-2011, whereas the instant petition has been filed on 20-4-2011 as such this petition has become infructuous. Mr. Mukhtar Ahmed Khanzada, learned counsel appearing for official respondents also adopted the arguments advanced by Mr. Sahar. During the course of arguments Mr. M. Arshad S. Pathan, learned counsel for the petitioners has placed on record the photocopy of plaint in Suit No.114 of 2011 Re: Haji Ahmed Ali Memon v. Mst. Khalida Hafeez which is pending adjudication at principal seat, and submitted that said Suit has been filed by the father of the petitioners and private respondents in respect of same property which is the subject-matter of these proceedings. He has also invited our attention to an order dated 27-1-2011 which reflects that parties were directed to maintain status quo. We have heard learned counsel for the parties and perused the documents placed before us. The memo of plaint in Suit No.114 of 2011 reflects that subject-matter of the above suit is a double storey bungalow situated in Parsi Colony, Jamshed Quarters Karachi, Plot bearing C.S. No.58/1 situated in Ward 'G' Liaquat Colony Hyderabad and agricultural land bearing S.Nos.808/2, 809/4, 809/5, 810/8, 810/9, 813/1, 813/2, 813/3, 813/5, 814/1, 817/1, 715/10, 812/2 and 812/4 situated at Deh Mairaj Tapo and Taluka Tando Allahyar District Tando Allahyar, whereas in the present proceedings subject-matter is a Roller Flour Mill constructed on Plot No.58/2 Ward 'G' and Plot No.58/17, 18 and 19 Ward 'G'. We are conscious of our mind that there are factual controversies with regard to the genuineness or otherwise of the gift-deed and it is almost settled principle of law that factual controversy cannot be resolved in these proceedings. Determination of the genuiness or otherwise of the document requires evidence for which proper forum is the Civil Court. Even properties which are subject-matter of Suit No.114 of 2011 and in these proceedings are quite different. In view of above, we are of the considered view that the instant petition merits no consideration, which is accordingly dismissed. However, the petitioners are at liberty to approach the proper forum for redressal of their grievance as provided under the law. M.H./F-25/K Petition dismissed.